419 N.E.2d 568 (Ill.App. 1 Dist. 1981), 80-1833, Hosein v. Checker Taxi Co., Inc.
|Citation:||419 N.E.2d 568, 95 Ill.App.3d 150, 50 Ill.Dec. 460|
|Party Name:||Gloria Jean HOSEIN, as Administrator of the Estate of Kadir Hosein, Deceased, Plaintiff-Appellee, v. CHECKER TAXI COMPANY, INC., Defendant-Appellant.|
|Case Date:||March 31, 1981|
|Court:||Court of Appeals of Illinois|
[50 Ill.Dec. 461] Jesmer & Harris, Chicago (Charles E. Tannen and Allen L. Wiederer, Chicago, of counsel), for defendant-appellant.
Keck, Mahin & Cate, Chicago, for plaintiff-appellee.
[95 Ill.App.3d 151] HARTMAN, Presiding Justice.
Plaintiff, administrator of the estate of Kadir Hosein, brought a wrongful death action (Ill.Rev.Stat.1979, ch. 70, par. 1, et seq.) sounding in negligence against Checker Taxi Company (hereinafter "Checker"), alleging that Hosein had leased a taxicab from Checker and was killed during the operation of that cab on April 21, 1978 when one or two passengers shot him. The complaint alleged that Checker owed a duty of due care, arising either from common law principles or section 12-605 of the Illinois Vehicle Code (Ill.Rev.Stat.1979, ch. 951/2, par. 12-605), to provide a shield or other protective partition between the driver's seat and the back seat, and that the failure to install such a shield was the proximate cause of Hosein's death. Checker's motion to dismiss the compliant for failure to state a cause of action was denied and we allowed Checker's interlocutory appeal therefrom under Supreme Court Rule 308 (Ill.Rev.Stat.1979, ch. 110A, par. 308). For the reasons set forth below, we reverse the trial court's denial of the motion to dismiss.
We first address the applicability of section 12-605 to this action. Plaintiff asserted below that the complaint stated a cause of action for negligence based on Checker's alleged violation of section 12-605 because this penal statute, while not specifically providing for a civil remedy, was intended to protect the class, of which Hosein was a member, from the type of injury which Hosein received, and the injury that a direct and proximate connection with the violation. (First National Bank v. City of Aurora (1978), 71 Ill.2d 1, 15 Ill.Dec. 642, 373 N.E.2d 1326; Davis v. Marathon Oil Co. (1976), 64 Ill.2d 380, 1 Ill.Dec. 93, 356 N.E.2d 93; Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881.) Checker responds that section 12-605, having been declared unconstitutionally vague in Meyerson v. Carter (1974), 22 Ill.App.3d 73, 316 N.E.2d 240, cannot be employed here to establish a statutorily defined duty and standard of conduct. The following summary of the legislative amendments and judicial interpretations of section 12-605 is a necessary prelude to an analysis of the issues and arguments raised herein.
Section 12-605 was derived from sections 441 and 442 enacted by Public Act 76-1054 (1969 Ill.Laws), effective August 28, 1969 which took the following form:
"In municipalities with 1,000,000 or more population, any taxicab manufactured, owned or operated after September 1, 1970, and regularly operated in such a...
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